Common use of SPINCO’S LIABILITY FOR DISTRIBUTION TAXES Clause in Contracts

SPINCO’S LIABILITY FOR DISTRIBUTION TAXES. Spinco and each Spinco Affiliate shall be jointly and severally liable for any Distribution Taxes, to the extent that such Distribution Taxes are attributable to, caused by, or result from, one or more of the following: (1) any action or omission by Spinco (or any Spinco Affiliate) after the Distribution at any time, that is inconsistent with any material, information, covenant or representation related to Spinco or WMC, or any Spinco Affiliate or WMC Affiliate, or the Spinco Business or the WMC Business, in an Officer’s Certificate, Tax Opinion, Supplemental Tax Opinion, Ruling Documents, Supplemental Ruling Documents, Ruling, or Supplemental Ruling (for the avoidance of doubt, disclosure by Spinco (or any Spinco Affiliate) to Xxxxxx (or any Xxxxxx Affiliate) of any action or fact that is inconsistent with any material, information, covenant or representation submitted to Tax Counsel, the IRS, or other Tax Authority, as applicable, in connection with an Officer’s Certificate, Tax Opinion, Supplemental Tax Opinion, Ruling Documents, Supplemental Ruling Documents, Ruling, or Supplemental Ruling shall not relieve Spinco (or any Spinco Affiliate) of liability under this Agreement); (2) any action or omission by Spinco (or any Spinco Affiliate) after the date of the Distribution (including any act or omission that is in furtherance of, connected to, or part of a plan or series of related transactions (within the meaning of Section 355(e) of the Code) occurring on or prior to the date of the Distribution) including a cessation, transfer to affiliates or disposition of the active trades or businesses of Spinco (or any Spinco Affiliate), stock buyback or payment of an extraordinary dividend (other than the payment of the Taxable Dividend); (3) any acquisition (other than the Merger, and for the avoidance of doubt, other than in connection with the Taxable Dividend) of any stock (or limited liability company interests) or assets of Spinco (or any Spinco Affiliate) by one or more other persons (other than Xxxxxx or any Xxxxxx Affiliate) prior to or following the Distribution; or (4) any issuance of stock (or limited liability company interests) by Spinco (or any Spinco Affiliate) after the Distribution, including any issuance pursuant to the exercise of employee stock options or other employment related arrangements or the exercise of warrants, other than in connection with the Taxable Dividend.

SPINCO’S LIABILITY FOR DISTRIBUTION TAXES. Notwithstanding Sections 3.01 through 3.03 of this Agreement, Spinco and each Spinco Affiliate shall be jointly and severally liable for any Distribution Taxes, to the extent that such Distribution Taxes are attributable to, caused by, or result from, one or more of the following: (1i) any action or omission by Spinco (or any Spinco Affiliate) after the Distribution and any action or omission by the Company (or any Company Affiliate) at any time, that is inconsistent with any materialmaterial or information relating to facts or matters related to Spinco (or any Spinco Affiliate) or the Spinco Business, informationthat has been provided to or by Spinco, and any covenant or representation related to Spinco or WMC, or any Spinco Affiliate or WMC Affiliate, or in the Spinco Business or the WMC Business, in an Officer’s Certificate, Tax Opinion, Supplemental Tax Opinion, Ruling Documents, Supplemental Ruling Documents, Initial Ruling, or Supplemental Ruling Ruling; provided, however, that neither Spinco (or any Spinco Affiliate) nor the Company (or any Company Affiliate) shall be liable for any action or omission that is inconsistent with any such covenant or representation that has not been disclosed to Spinco (or any Spinco Affiliate) or the Company (or any Company Affiliate) as a result of Section 4.02(b) or in breach of Section 4.02(b) by HP Co. (or any HP Co. Affiliate) (for the avoidance of doubt, disclosure by Spinco (or any Spinco Affiliate) to Xxxxxx or the Company (or any Xxxxxx Company Affiliate) to HP Co. (or any HP Co. Affiliate) of any action or fact that is inconsistent with any material, information, covenant or representation submitted to Tax Counsel, the IRS, or other Tax Authority, as applicable, IRS in connection with an Officer’s Certificate, Tax Opinion, Supplemental Tax Opinion, the Ruling Documents, Supplemental Ruling Documents, Initial Ruling, or Supplemental Ruling shall not relieve Spinco (or any Spinco Affiliate) or the Company (or any Company Affiliate) of liability under this Agreement); (2ii) any action or omission, other than any action or omission relating to any material, information, covenant or representation which is addressed in Section 4.01(b)(i) above, by Spinco (or any Spinco Affiliate) or the Company (or any Company Affiliate) after the date of the Distribution (including any act or omission that is in furtherance of, connected to, or part of a plan or series of related transactions (within the meaning of Section section 355(e) of the Code) that includes, or is otherwise related to, any act or omission by the Company (or any Company Affiliate) occurring on or prior to the date of the Distribution) including without limitation, a cessation, transfer to affiliates or disposition of the active trades or businesses of Spinco (or any Spinco Affiliate), stock buyback or payment of an extraordinary dividend (other than the payment of the Taxable Dividend)dividend; (3iii) any acquisition (other than the Merger, and for the avoidance of doubt, other than in connection with the Taxable Dividend) of any stock (or limited liability company interests) or assets of Spinco (or any Spinco Affiliate) by one or more other persons (other than Xxxxxx HP Co. or any Xxxxxx HP Co. Affiliate) prior to or following the Distribution; or (4iv) any issuance of stock (or limited liability company interests) by Spinco (or any Spinco Affiliate) ), including any Permitted Issuance, after the DistributionDistribution and any issuance of stock by the Company (or any Company Affiliate) at any time, including any issuance pursuant to the exercise of employee stock options or other employment related arrangements or the exercise of warrants, or change in ownership of stock in Spinco (or any Spinco Affiliate) after the Distribution. For the avoidance of doubt, if any issuance or acquisition of stock or assets of Spinco (or any Spinco Affiliate) or the Company (or any Company Affiliate) results in one or more persons owning a 50% or greater interest in Spinco (or any Spinco Affiliate) or the Company (or any Company Affiliate) (whether standing alone or when coupled with one or more other than in connection with transactions within the Taxable Dividendmeaning of section 355(e) of the Code), 100% of the amount of any Distribution Taxes resulting therefrom shall be attributable to Spinco.